Judge: Steven A. Ellis, Case: 19STCV04352, Date: 2023-08-14 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

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IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 

ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV04352    Hearing Date: August 15, 2023    Dept: 29

TENTATIVE

Defendant’s motion is GRANTED. Sanctions are awarded in the amount of $510.

Background

On February 11, 2019, Plaintiff Diana Fernandez (“Plaintiff”) filed this negligence action against Defendant Wendy Hoffman (“Defendant”).  The case arises out of an automobile accident on February 14, 2017 on Washington Boulevard in the County of Los Angeles.

Defendant has twice served a demand for a medical examination of Plaintiff.  (Mendoza Decl., ¶¶ 4, 7 & Exhs. B, D.)  First, on November 23, 2022, Defendant served a demand for Plaintiff’s independent medical examination, setting the examination for December 15, 2022. (Id., ¶ 4; Exh. B.) The examination was rescheduled for December 22, 2022. (Id., ¶ 5; Exh. C.) Plaintiff failed to serve a response to Defendant’s demand for examination. On December 22, 2022, Plaintiff failed to appear for the examination. (Id., ¶ 6.) On May 4, 2023, Defendant served another demand for Plaintiff’s medical examination, setting the examination for June 8, 2023. (Id., ¶ 7; Exh. D.) Plaintiff failed to serve a response to Defendant’s demand for examination but requested that the examination be rescheduled. (Id., ¶ 8; Exh. E.) At Plaintiff’s request, the examination was rescheduled for June 20, 2023. (Id., ¶ 9; Exh. F.) Plaintiff failed to serve a response to the demand for examination. On June 19, 2023, at 4:24 p.m., Plaintiff’s counsel advised Plaintiff had to cancel the examination, and she would help to reschedule the examination. (Id., ¶ 10; Exh. G.) However, Plaintiff’s counsel failed to provide alternative examination dates. (Id., ¶ 11.)

As of the filing of this motion, the examination has not been scheduled or conducted.

On July 19, 2023, Defendant filed the instant motion to compel Plaintiff to appear for an independent medical examination before defense expert Dr. Brian Gantwerker on August 23, 2023, at 9:00 a.m., at 2811 Wilshire Boulevard Suite 840 Santa Monica, CA 90403.  Plaintiff has not filed a response.

Legal Standard

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee. (Code of Civ. Proc., § 2032.220, subd. (a).) A defendant may make a demand for physical examination without leave of the court after that defendant has been served or has appeared (Code of Civ. Proc., § 2032.220, subd. (b)), and the physical examination demanded shall be scheduled for a date at least 30 days after service (Code of Civ. Proc., § 2032.220, subd. (d)).

Within 20 days after service of the demand, the plaintiff to whom the demand is directed shall serve a written statement that he or she will comply with the demand as stated, will comply with the demand as specifically modified by the plaintiff, or will refuse, for reasons specified in the response, to submit to the demanded physical examination. (Code of Civ. Proc., § 2032.230, subd. (a).)

“The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel response and compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code of Civ. Proc., § 2032.240, subd. (c).)

Discussion

As this is a personal injury action, Defendant is entitled to a physical examination of Plaintiff.

Defendant has twice served a demand for a physical examination of Plaintiff.  Plaintiff filed no objection or response to the demand on either occasion.  The first time, Plaintiff did not appear.  The second time, Plaintiff rescheduled and then cancelled at the last minute, even though the examination had been rescheduled at her request. 

No examination has been conducted, even though almost nine months have elapsed since the service of the initial demand.  Plaintiff has filed no opposition.

Based on the foregoing, the motion is granted.

The request for monetary sanctions is also granted in part.  The Court awards sanctions for 2.5 hours of attorney time at counsel’s billing rate of $180 per hour, plus the $60 filing fee.  (Mendoza Decl., ¶ 14.)  The total amount is $510.  Defendant’s request for an award of $3,000 in costs associated with the cancelled examinations is denied without prejudice; Defendant has provided no authority for the proposition that such costs is appropriately included with an award of sanctions under the Civil Discovery Act.

Conclusion

Defendant’s motion is GRANTED.  The Court ORDERS Plaintiff to appear for an independent medical examination by Dr. Brian Gantwerker on August 23, 2023, at 9:00 am, at 2811 Wilshire Boulevard, Suite 840, Santa Monica, California 90403.

The Court also GRANTS in part Defendant’s request for monetary sanctions.  The Court ORDERS Plaintiff and counsel of record D. Hess Panah to pay Defendant monetary sanctions in the amount of $510 within 30 days of notice of this order.

Moving party is ordered to give notice.